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ANALYSIS OF AUGUST 18, 2016 SUPREME COURT OPINIONS

[Posted August 18, 2016] After a four-week hiatus, the Supreme Court has resumed its rolling release of opinions. Today the court hands down two decisions from appeals argued in the June session.

A quick side note about timing: It’s been about 2 ½ months since the justices heard oral argument in these cases. You might think that that means the court has slowed down the pace of decisions after abandoning the six-times-per-year pattern of opinion days. After all, the previous policy gave you a result, usually, within seven weeks.

Think again. For appeals argued in the June session, the old policy would have made litigants wait until mid-September – the longest gap in the calendar. These appellants actually get rulings four weeks earlier than they would have before.

One last point: while the court has begun to issue opinions from June-session cases, there’s still one holdover from the April session. Those litigants have been waiting a long time, though four months isn’t unprecedented. Going back to the early days of this website, the justices held the opinion in Muhammad v. Commonwealth, the DC sniper appeal, over the January and March sessions before issuing their ruling in April 2005 – almost six months after the argument.

Criminal law

In order to follow Scott v. Commonwealth, involving credit-card theft, you’ll need to know that the relevant statute reads this way:

(1) A person is guilty of credit card or credit card number theft when:

(a) He takes, obtains or withholds a credit card or credit card number from the person, possession, custody or control of another without the cardholder’s consent or who, with knowledge that it has been so taken, obtained or withheld, receives the credit card or credit card number with intent to use it or sell it, or to transfer it to a person other than the issuer or the cardholder; . . . .

Scott was convicted of several offenses when he broke into his ex’s home and, at gunpoint, stole her purse, which contained credit cards. The next day, he told her that the purse was at her mother’s house. He had taken out some cash and cigarettes, but the credit cards were still there; it didn’t appear that Scott had tried to use them. That didn’t stop him from getting indicted for credit-card theft.

A judge awarded Scott substantial free room and board for several convictions. The only one of those that matters for this appeal is the one for credit-card theft. The issue is one of grammar (a topic that always warms my heart). Here’s the deal:

The last portion of the statute I quote above contains an intent requirement. There are two ways to be convicted: you either take someone’s card, or you receive a stolen card. The question in this appeal is whether the intent-to-use requirement applies to both components, or just to the receiving component.

Justice Russell, writing for a unanimous court, applies some straightforward rules of grammar to conclude that proof of intent is needed only for the receiving component. If you take someone’s credit card from her, there’s no need for the prosecutor to prove intent to use. The decisive doctrine is the last-antecedent rule, which ensured that John Tyler was, in fact, the tenth President of the United States. But that’s another grammar-geek tale, for another day.

The next case, Wright v. Commonwealth, is factually very complex, so I won’t spend undue time reciting all the facts. (The full story is, as always, just a mouse click away.) The Reader’s Digest version is that Wright and his brother shoplifted two cases of beer from a grocery store. A security agent noticed and followed the two outside to their vehicle. Although he stopped and confronted them, the two eventually took their suds and drove away.

The security agent duly copied the license information, and law-enforcement officers were soon on their trail. When a deputy sheriff confronted Wright’s brother inside a house, the gendarme soon had a faceful of something called bear deterrent, a kind of pepper spray.

The primary issue on appeal is whether Wright can be convicted on this evidence of “felony malicious bodily injury by means of a caustic substance.” His brother is the one who confronted the sheriff, and no evidence actually put Wright in the room at that time, though he was found there two hours later. The Supreme Court finds this link too tenuous; the Court of Appeals had affirmed the conviction based on circumstantial evidence, but that’s a bridge too far for the justices to go along, and they reverse. The same fate awaits two other convictions for assault of a law-enforcement officer and obstruction of justice, since they depended on the caustic-substance attack.

On two other assignments, Wright doesn’t fare as well. In one, he was charged with robbery. The trial court instructed the jury on the lesser-included offense of grand larceny from the person, and the jury accepted that invitation, convicting Wright of the lesser charge. On appeal in the CAV, Wright contended that the larceny wasn’t a lesser-included offense of robbery. The CAV ruled that that argument was waived because Wright didn’t make the argument below.

In the Supreme Court, Wright’s assignment of error stated that the CAV erred in holding that the trial court did not err in convicting him of the larceny charge. Unless you pay careful attention to assignments – which would probably make you an appellate lawyer – you may have missed the fact that Wright is describing the CAV’s ruling incorrectly. That court didn’t find that the trial court did not err; it found that the issue was waived. Since Wright didn’t describe the ruling that the court actually made, that issue is waived here, too.

In another assignment challenging the grand-larceny conviction, Wright’s language was ambiguous. To their great credit – Justice Lacy writes for a six-member majority of the court – the justices give him the benefit of the doubt and evaluate the one that would not waive the issue. But no luck for Mr. Wright; even in that liberal vein the court finds that the Court of Appeals properly ruled that Wright’s assignment in that court was fatally defective.

In all, Wright has a pretty good day. He’s still guilty of larceny, but what I see as the more serious charges get swept aside.

Before we leave this case, I’ll add that there’s a dissent: Justice McClanahan would affirm all of the convictions on the reasoning of the Court of Appeals.

Justices Kelsey and McCullough take no part in this decision because they were on the Court of Appeals when this case made its way through that court. I’m assuming that Wright filed a petition for en banc rehearing in that court, but it wasn’t granted. That would explain why both of them stepped aside. It also would explain the 21-month delay between the date of the CAV opinion and today’s ruling.